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2023 DIGILAW 532 (JHR)

Axis Bank Limited v. State of Jharkhand

2023-04-18

ANIL KUMAR CHOUDHARY

body2023
JUDGMENT : By the Court : 1. Heard the parties. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the entire criminal proceeding and the order taking cognizance dated 29.05.2019, passed in C1 –Case No. 646 of 2019 by the learned Judicial Magistrate -1st Class, Jamshedpur, whereby and where under cognizance under Section 500 of the Indian Penal Code has been taken against the petitioners, now pending in the court of learned Judicial Magistrate -1st Class, Jamshedpur. 3. Mr. R.S. Mazumdar, learned senior counsel appearing for the petitioners submits that the petitioner no.1 is a Body Corporate being the Axis Bank Limited, petitioner no.2 is the Managing Director and petitioner no.3 is the Executive Director of the said Bank. The allegation against the petitioners is that the complainant was a loanee of the petitioners-bank and the complainant handed over post-dated cheques for repayment of the loan installments. The complainant defaulted in payment of the loan. The petitioner-bank presented the post-dated cheques given by the complainant for encashment. As the said post-dated cheques were dishonoured, the bank issued notice as required under law but even after notice, the complainant did not pay the amount for which the cheque was issued, hence the petitioner-bank instituted C.S. Case No. 50120 of 2017 in the court of Metropolitan Magistrate at Calcutta. The Magistrate issued bailable warrant of arrest and police came to the house of the complainant for execution of the said warrant of arrest and at that time, laptop of the complainant fell down and became damaged and as police came to the house of the complainant, hence the complainant was defamed. 4. It is submitted by Mr. R.S. Mazumdar, the learned senior counsel appearing for the petitioners that the petitioners are posted at Mumbai and are not involved in day to day operation of the branches and much less expected to be aware of every single operation that takes place in every branch nor there is any specific allegation against the petitioners of being in know of the facts of institution of the case involving the offence punishable under Section 138 of the Negotiable Instrument Act by the bank against the complainant. It is next submitted that the fact that the complainant took loan from the petitioner-bank, handed over post-dated cheques, the said cheques upon being presented were dishonoured and after dishonor of the cheque, though notice was served upon the complainant by the bank, still he did not pay the amount for which the cheque was issued; is undisputed, even by the complainant. Hence, the allegation against the petitioners is covered by the 8th Exception of Defamation as envisaged under Section 499 of the Indian Penal Code which reads as under:- 499. Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person. First Exception -Xxxxxxx Eighth Exception.—Accusation preferred in good faith to authorised person.—It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation. 5. It is next submitted by the learned senior counsel for the petitioners that the petitioners cannot be held liable for the acts, if any, done by the officer of the police in the process of execution of bailable warrant of arrest. It is next submitted that the inquiry witnesses have not stated anything to implicate the petitioners in the alleged offence and no offence is made out against the petitioners. 6. Relying upon the Judgment of Hon’ble Supreme Court of India in the case of Ravindranatha Bajpe Vs. Mangalore Special Economic Zone Ltd. & Others Etc., reported in (2021) SCC Online SC 806, para -27 & 28 of which reads as under:- “27. As held by this Court in the case of India Infoline Limited (supra), in the order issuing summons, the learned Magistrate has to record his satisfaction about a prima facie case against the accused who are Managing Director, the Company Secretary and the Directors of the Company and the role played by them in their respective capacities which is sine qua non for initiating criminal proceedings against them. Looking to the averments and the allegations in the complaint, there are no specific allegations and/or averments with respect to role played by them in their capacity as Chairman, Managing Director, Executive Director, Deputy General Manager and Planner & Executor. Merely because they are Chairman, Managing Director/Executive Director and/or Deputy General Manager and/or Planner/Supervisor of A1 & A6, without any specific role attributed and the role played by them in their capacity, they cannot be arrayed as an accused, more particularly they cannot be held vicariously liable for the offences committed by A1 & A6. 28. From the order passed by the learned Magistrate issuing the process against the respondents herein -accused nos. 1 to 8, there does not appear that the learned Magistrate has recorded his satisfaction about a prima facie case against respondent nos. 2 to 5 and 7 & 8. Merely because respondent Nos. 2 to 5 and 7 & 8 are the Chairman/Managing Director/Executive Director/Deputy General Manager/Planner & Executor, automatically they cannot be held vicariously liable, unless, as observed hereinabove, there are specific allegations and averments against them with respect to their individual role. Under the circumstances, the High Court has rightly dismissed the revision applications and has rightly confirmed the order passed by the learned Sessions Court quashing and setting aside the order passed by the learned Magistrate issuing process against respondent nos. 1 to 8 herein -original accused nos. 1 to 8 for the offences punishable under Sections 427, 447, 506 and 120B read with Section 34 IPC.” (Emphasis supplied) It is submitted by Mr. Mazumdar, the learned senior counsel for the petitioners that as the role played by the petitioner nos. 2 & 3 has not been stated anywhere, either in the complaint or in the statement of the complainant recorded under solemn affirmation or in the statement of the two inquiry witnesses, hence it is submitted that this is a fit case where the entire criminal proceeding and the order taking cognizance dated 29.05.2019, passed in C1 –Case No. 646 of 2019 by the learned Judicial Magistrate -1st Class, Jamshedpur be quashed. 7. Mr. Ravi Prakash, the learned Spl. P.P. appearing for the State and Mr. 7. Mr. Ravi Prakash, the learned Spl. P.P. appearing for the State and Mr. Bajrang Kumar, Advocate appearing for the opposite party no.2 opposes the prayer for quashing the entire criminal proceeding and the order taking cognizance dated 29.05.2019, passed in C1 –Case No. 646 of 2019 by the learned Judicial Magistrate -1st Class, Jamshedpur, as prayed for but do not dispute the fact that the complainant took loan from the petitioner-bank, he issued post-dated cheques, there was default in the loan account, the bank presented the post-dated cheques handed over by the complainant-opposite party no.2 for encashment but the cheques were dishonoured, after that the bank issued notice to the complainant-opposite party no.2 but still the complainant-opposite party no.2 did not pay the amount for which the cheque mentioned in the notice was issued by him was dishonoured upon presentation in bank. 8. Having heard the submissions made at the bar and after going through the materials in the record, it is pertinent to mention here that the 8th Exception of Section 499 of the Indian Penal Code in which the defamation has been defined, specifically mentions that when a person prefer in good faith an accusation against any person to any of those who have to any of the lawful authority, the same will not amount to defamation. 9. In view of the undisputed fact that the petitioner took loan from the petitioner-bank, issued post-dated cheques, committed default in payment of the loan amount, the cheque issued by the complainant upon being presented in the bank was dishonoured, the bank issued notice to the complainant calling upon him to pay the amount for which the cheque which was dishonoured was issued but still the complainant-opposite party no.2 did not pay the amount and thereafter, the bank instituted the case, is certainly covered by the 8th Exception of Section 499 of the Indian Penal Code. Besides that, there is no specific allegation against the petitioner nos. 2 & 3 to suggest that they were personally involved in any of the transactions leading to the alleged offence. 10. Under such circumstances of the case, this Court has no hesitation in holding that the order taking cognizance dated 29.05.2019, passed in C1 –Case No. 646 of 2019 by the learned Judicial Magistrate -1st Class, Jamshedpur is not sustainable in law. 11. 10. Under such circumstances of the case, this Court has no hesitation in holding that the order taking cognizance dated 29.05.2019, passed in C1 –Case No. 646 of 2019 by the learned Judicial Magistrate -1st Class, Jamshedpur is not sustainable in law. 11. Accordingly, the entire criminal proceeding and the order taking cognizance dated 29.05.2019, passed in C1 –Case No. 646 of 2019 by the learned Judicial Magistrate -1st Class, Jamshedpur, whereby and where under cognizance under Section 500 of the Indian Penal Code has been taken against the petitioners, now pending in the court of learned Judicial Magistrate -1st Class, Jamshedpur, qua the petitioners is quashed and set aside. 12. In the result, this criminal miscellaneous petition is allowed. 13. In view of the disposal of the instant criminal miscellaneous petition, the interim order, if any, stands vacated.